# Opinion — Sorrells v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1932
- **Citation:** 287 U.S. 435

## Text

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SUPREME COURT OF THE UNITED STATES.

No. 177.—Octosrr Term, 1932.

—

On Writ of Certiorari to
the United States Cir-
cuit Court of Appeals
for the Fourth Circuit.

C. V. Sorrells, Petitioner,
vs.
The United States of America.

[December 19, 1932.]

Mr. Chief Justice Huanes delivered the opinion of the Court.

Defendant was indicted on two counts (1) for possessing and
(2) for selling, on July 13, 1930, one-half gallon of whiskey in
violation of the National Prohibition Act. He pleaded not guilty.
Upon the trial he relied upon the defense of entrapment.
The court refused to sustain the defense, denying a motion to
direct a verdict in favor of defendant and also refusing to submit
the issue of entrapment to the jury. The court ruled that ‘‘as a
matter of law’’ there was no entrapment. Verdict of guilty fol-
lowed, motions in arrest, and to set aside the verdict as contrary
to the law and the evidence, were denied, and defendant was
sentenced to imprisonment for eighteen months. The Circuit
Court of Appeals affirmed the judgment (57 F. (2d) 973) and this
Court granted a writ of certiorari limited to the question whether
the evidence was sufficient to go to the jury upon the issue of
entrapment.

The Government, while supporting the conclusion of the court
below, also urges that the defense, if available, should have been
pleaded in bar to further proceedings under the indictment and
could not be raised under the plea of not guilty. This question
of pleading appropriately awaits the consideration of the nature
and grounds of the defense.

The substance of the testimony at the trial as to entrapment
was as follows: For the Government, one Martin, a prohibition
agent, testified that having resided for a time in Haywood County,
North Carolina, where he posed as a tourist, he visited defendant’s
home near Canton, on Sunday, J uly 13, 1930, accompanied by

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2 Sorrells vs. United States.

three residents of the county who knew the defendant well. He
was introduced as a resident of Charlotte who was stopping for
a time at Clyde. The witness ascertained that defendant was a
veteran of the World War and a former member of the 30th Divi-
sion A. E. F. Witness informed defendant that he was also an
ex-service man and a former member of the same Division, which
was true. Witness asked defendant if he could get the witness
some liquor and defendant stated that he did not have any. Later,
there was a second request without result. One of those present,
one Jones, was also an ex-service man and a former member of
the 30th Division, and the conversation turned to the war experi-
ences of the three. After this, witness asked defendant for a
third time to get him some liquor, whereupon defendant left his
home and after a few minutes came back with a half gallon of
liquor for which the witness paid defendant five dollars. Martin
also testified that he was ‘‘the first and only person among those
present at the time who said anything about securing some liquor“,
and that his purpose was to prosecute the defendant for procuring
and selling it. The Government rested its case on Martin’s testi-
mony. .

Defendant called as witnesses the three persons who had ac-
companied the prohibition agent. In substance, they corroborated
the latter’s story but with some additions. Jones, a railroad em-
ployee, testified that he had introduced the agent to the defendant
‘fas a furniture dealer of Charlotte, because the agent had so
represented himself; that witness told defendant that the agent was
an old 30th Division man’’ and the agent thereupon said to de-
fendant that he would like to get a half gallon of whiskey to take
back to Charlotte to a friend of his that was in the furniture busi-
ness with him, and that defendant replied that he ‘‘did not fool
with whiskey’’; that the agent and his companions were at de-
fendant’s home ‘‘for probably an hour or an hour and a half and
that during such time the agent asked the defendant three or four
or probably five times to get him, the agent, some liquor’’. De-
fendant said he would go and see if he could get a half gallon of
liquor’’ and he returned with it after an absence of ‘‘between
twenty and thirty minutes“. Jones added that at that time he
had never heard of defendant being in the liquor business, that
he and the defendant were ‘‘two old buddies’’, and that he be-
lieved one former war buddy would get liquor for another“

Sorrells vs. United States. 3

Another witness, the timekeeper and assistant paymaster of the
Champion Fibre Company at Canton testified that defendant was
an employee of that company and had been on his job continu-
ously without missing a pay day since March, 1924’’. Witness
identified the time sheet showing this employment. This witness
and three others who were neighbors of the defendant and had
known him for many years testified to his good character.

To rebut this testimony, the Government called three witnesses
who testified that the defendant had the general reputation of a
rum runner. There was no evidence that the defendant had ever
possessed or sold any intoxicating liquor prior to the transaction
in question.

It is clear that the evidence was sufficient to warrant a finding
that the act for which defendant was prosecuted was instigated
by the prohibition agent, that it was the creature of his purpose,
that defendant had no previous disposition to commit it but was
an industrious, law-abiding citizen, and that the agent lured de-
fendant, otherwise innocent, to its commission by repeated and
persistent solicitation in which he succeeded by taking advantage
of the sentiment aroused by reminiscences of their experiences as
companions in arms in the World War. Such a gross abuse of
authority given for the purpose of detecting and punishing crime,
and not for the making of criminals, deserves the severest con-
demnation, but the question whether it precludes prosecution or
affords a ground of defense, and, if so, upon what theory, has
given rise to conflicting opinions.

It is well settled that the fact that officers or employees of the
Government merely afford opportunities or facilities for the com-
mission of the offense does not defeat the prosecution. Artifice
and stratagem may be employed to catch those engaged in crimi-
nal enterprises. Grimm v. United States, 156 U. S. 604, 610;
Goode v. United States, 159 U. 8. 663, 669 ; Rosen v. United States,
161 U. S. 29, 42; Andrews v. United States, 162 U. S. 420, 423;
Price v. United States, 165 U. 8. 311, 315; Bates v. United States,
10 Fed. 92, 94; Note. p. 97. United States v. Reisenweber, 288
Fed. 520, 526; Aultman v. United States, 289 Fed. 251. The ap-

See, also, Regina v. Williams, 1 Car. & K. 195; People v. Mills, 178 N. X.
274; People v. Ficke, 343 III. 367.

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4 Sorrells vs. United States.

propriate object of this permitted activity, frequently essential to
the enforcement of the law, is to reveal the criminal design ; to ex-
pose the illicit traffic, the prohibited publication, the fraudulent
use of the mails, the illegal conspiracy, or other offenses, and thus
to disclose the would-be violators of the law. A different question
is presented when the criminal design originates with the officials
of the Government, and they implart in the mind of an innocent
person the disposition to commit the alleged offense and induce
its commission in order that they may prosecute.

The Cireuit Court of Appeals reached the conclusion that the
defense of entrapment can be maintained only where, as a result
of inducement, the accused is placed in the attitude of having com-
mitted a crime which he did not intend to commit, or where, by
reason of the consent implied in the inducement, no crime has in
fact been committed. 57 F. (2d) p. 974. As illustrating the first
class, reference is made to the case of a sale of liquor to an Indian
who was disguised so as to mislead the accused as to his identity.
United States v. Healy, 02 Fed. 349; Voves v. United States, 249
Fed. 191. In the second class are found cases such as those of
larceny or rape where want of consent is an element of the crime.
Regina v. Fletcher, 8 Cox. C. C. 131; Rex v. McDaniel, Fost. 121,
127, 128; Connor v. People, 18 Colo. 373; Williams v. Georgia, 55
Ga. 391; United States v. Whittier, 5 Dill. 35; State v. Adams, 115
N. C. 775. There may also be physical conditions which are essential
to the offense and which do not exist in the case of a trap, as, for ex-
ample, in the case of a prosecution for burglary where it appears
that by reason of the trap there is no breaking. Rex v. Egginton,
2 Leach, C. C. 913; Regina v. Johnson, Car. & Mar. 218; Saunders
v. People, 38 Mich. 218; People v. McCord, 76 Mich. 200; Allen v.
State, 40 Ala. 334; Love v. People, 160 Ill. 501. But these deci-
sions applying accepted principles to particular offenses, do not
reach, much less determine, the present question. Neither in
reasoning nor in effect do they prescribe limits for the doctrine
of entrapment.

While this Court has not spoken on the precise question (see
Casey v. United States, 276 U. S. 413, 419, 423), the weight of
authority in the lower federal courts is decidedly in favor of the

2See note of Francis Wharton to Bates v. United States, 10 Fed. 97-99.
Compare Olmstead v. United States, 277 U. S. 438.

Sorrells vs. United States. 5

view that in such case as the one before us the defense of entrap-
ment is available. The Government concedes that its contention,
in supporting the ruling of the Cireuit Court of Appeals, is op-
posed by decisions in all the other Cireuits except the Tenth Cir-
euit, and no decision in that Circuit suggesting a different view has
been brought to our attention. See Capuano v. United States (C.
C. A. Ist), 9 F. (2d) 41, 42; United States v. Lynch (S. D. N. V.,
Hough, J.), 256 Fed. 983, 984; Lucadamo v. United States (C. C. A.
2d), 280 Fed. 653, 657. 658; Zucker v. United States (C. C. A. 3d),
288 Fed. 12, 15; Gargano v. United States (C. C. A. 5th), 24 F.
(2d) 625, 626; Cermak v. United States (C. C. A. 6th), 4 F. (2d)
99; O’Brien v. United States (C. C. A. 7th), 51 Fed. 674, 679, 680;
Butts v. United States (C. C. A. 8th), 273 Fed. 35, 38; Woo Wai v.
United States (C. C. A. 9th), 223 Fed. 412. And the Cireuit
Court of Appeals of the Fourth Circuit, in the instant case, was
able to reach its conclusion only by declining to follow the rule
which it had laid down in its earlier decision in Newman v. United
States, 299 Fed. 128, 131.“ It should be added that in many cases
in which the evidence has been found insufficient to support the
defense of entrapment the availability of that defense, on a show-
ing of such facts as are present here, has been recognized.“ The
Federal courts have generally approved the statement of Circuit

See, also, United States v. Adams, 59 Fed. 674; Sam Lick v. United States,
240 Fed. 60, 65; United States v. Echols, 253 Fed. 862; Peterson v. United
States, 255 Fed. 433; Billingsley v. United States, 274 Fed. 86, 89; Luterman
v. United States, 281 Fed. 374, 377; United States v. Pappagoda, 288 Fed.
214; Ritter v. United States, 293 Fed. 187; Di Salvo v. United States, 2
F. (2d) 222; Silk v. United States, 16 F. (24) 568; Jarl v. United States,
19 F. (2d) 891; Coreoran v. United States, 19 F. (2d) 901; United States v.
Washington, 20 F. (2d) 160; Cline v. United States, 20 F. (2d) 494; United
States v. Mathues, 22 F. (2d) 979; Driskill v. United States, 24 F. (2d)
525; Ybor v. United States, 31 F. (2d) 42; Robinson v. United States, 32
F. (2d) 505; Vacearo v. Collier, 38 F. (2d) 862; Patton v. United States,
42 F. (2d) 68; and cases collected in note in O’Brien v. United States, 51
F. (2d) 674, 678, including decisions of state courts. Compare Rex v. Titley,
14 Cox, C. C. 502; Blaikie v. Linton, 18 Scottish Law Rep. 583; London Law
Times, July 30, 1881, p. 223; People v. Mills, 178 N. v. 274 State v. Smith,
152 N. C. 798; Bauer v. Commonwealth, 135 Va. 463; State v. Gibbs, 109
Minn. 247; State v. Rippey, 127 S. C. 550. See, also, 18 A. L. R. Ann. 146;
28 Columbia Law Rev. 1067; 44 Harv. Law Rev. 109; 2 So. Cal. Law Rev.
283; 41 Yale Law J. 1249; 10 Va. Law Rev. 316; 9 Tex. Law Rev. 276.

See cases cited in note 4.

6 Sorrells vs. United States.

Judge Sanborn in the leading case of Butts v. United States,
supra, as follows: ‘‘The first duties of the officers of the law are
to prevent, not to punish crime. It is not their duty to incite to
and create crime for the sole purpose of prosecuting and punish-
ing it. Here the evidence strongly tends to prove, if it does not
conclusively do so, that their first and chief endeavor was to cause,
to create, crime in order to punish it, and it is unconscionable, con-
trary to public policy, and to the established law of the land to
punish a man for the commission of an offense of the like of which
he had never been guilty, either in thought or in deed, and evidently
never would have been guilty of if the officers of the law had not
inspired, incited, persuaded, and lured him to attempt to commit
it’’. The judgment in that case was reversed because of the
‘fatal error’ of the trial court in refusing to instruct the jury to
that effect. In Newman v. United States, supra, the applicable
principle was thus stated by Cireuit Judge Woods: It is well
settled that decoys may be used to entrap criminals, and to pre-
sent opportunity to one intending or willing to commit crime. But
decoys are not permissible to ensnare the innocent and law-abiding
into the commission of crime. When the criminal design origi-
nates, not with the accused, but is conceived in the mind of the
government officers, and the accused is by persuasion, deceitful
representation, or inducement lured into the commission of a crimi-
nal act, the government is estopped by sound publie policy from
proseeution therefor’’. These quotations sufficiently indicate the
grounds of the decisions above cited.

The validity of the principle as thus stated and applied is chal-
lenged both upon theoretical and practical grounds. The argu-
ment, from the standpoint of principle, is that the court is called
upon to try the accused for a particular offense which is defined
by statute and that, if the evidence shows that this offense has
knowingly been committed, it matters not that its commission was
induced by officers of the Government in the manner and circum-
stances assumed. It is said that where one intentionally does an
act in circumstances known to him, and the particular conduct is
forbidden by the law in those circumstances, he intentionally
breaks the law in the only sense in which the law considers intent.
Ellis v. United States, 206 U. S. 246, 257. Moreover, that as the
statute is designed to redress a publie wrong, and not a private

Sorrells vs. United States. 7

injury, there is no ground for holding the Government estopped
by the conduct of its officers from prosecuting the offender. To
the suggestion of public policy the objectors answer that the legis-
lature, acting within its constitutional authority, is the arbiter of
publie poliey“ and that, where conduct is expressly forbidden and
penalized by a valid statute, the courts are not at liberty to dis-
regard the law and to bar a prosecution for its violation because
they are of the opinion that the crime has been instigated by gov-
ernment officials.

It is manifest that these arguments rest entirely upon the letter
of the statute. They take no account of the fact that its applica-
tion in the circumstances under consideration is foreign to its pur-
pose; that such an application is so shocking to the sense of justice
that it has been urged that it is the duty of the court to stop the
prosecution in the interest of the Government itself, to protect it
from the illegal conduct of its officers and to preserve the purity
of its courts. Casey v. United States, supra. But can an applica-
tion of the statute having such an effect—creating a situation so
contrary to the purpose of the law and so inconsistent with its
proper enforcement as to invoke such a challenge—fairly be deemed
to be within its intendment?

Literal interpretation of statutes at the expense of the reason
of the law and producing absurd consequences or flagrant injustice
has frequently been condemned. In United States v. Palmer, 3
Wheat. 610, 631, Chief Justice Marshall, in construing the Act of
Congress of April 30, 1790, section 8 (1 Stat. 113) relating to rob-
bery on the high seas, found that the words ‘‘any person or per-
sons were broad enough to comprehend every human being“,
but he concluded that general words must not only be limited
to cases within the jurisdiction of the state, but also to those objects
to which the legislature intended to apply them’’. In United States
v. Kirby, 7 Wall. 482, the case arose under the Act of Congress
of March 3, 1825 (4 Stat. 104) providing for the conviction of any
person who ‘‘shall knowingly and willfully obstruct or retard the
passage of the mail, or of any driver or carrier . . . carrying
the same. Considering the purpose of the statute, the Court held
that it had no application to the obstruction or retarding of the
passage of the mail or of its carrier by reason of the arrest of the

See C. B. & C. R. R. Co. v. McGuire, 219 U. S. 549, 565; Green v. Frazier,
253 U. S. 233, 240.

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8 Sorrells vs. United States.

carrier upon a warrant issued by a state court. The Court said:
„All laws should receive a sensible construction. General terms
should be so limited in their application as not to lead to injustice,
oppression, or an absurd consequence. It will always, therefore,
be presumed that the legislature intended exceptions to its language
which would avoid results of this character. The reason of the
law in such cases should prevail over its letter“. And the Court
supported this conclusion by reference to the classical illustrations
found in Puffendorf and Plowden. Id., pp. 486, 487.

Applying this principle in Lau Ow Bew v. United States, 144
U. S. 47, the Court decided that a statute requiring the permission
of the Chinese government, and identification by certificate, of
„every Chinese person other than a laborer’’, entitled by treaty
or the act of Congress to come within the United States, did not
apply to Chinese merchants already domiciled in the United States,
who had left the country for temporary purposes, animo revertendi,
and sought to reenter it on their return to their business and their
homes. And in United States v. Katz, 271 U. S. 354, 362, con-
struing section 10 of the National Prohibition Act so as to avoid
an unreasonable application of its words, if taken literally, the
Court again declared that ‘‘general terms descriptive of a class
of persons made subject to a criminal statute may and should be
limited where the literal application of the statute would lead
to extreme or absurd results, and where the legislative purpose
gathered from the whole Act would be satisfied by a more limited
interpretation“. See, to the same effect, Heydenfeldt v. Daney
Gold Company, 93 U. S. 634, 638; Carlisle v. United States, 16
Wall. 147, 153; Oates v. National Bank, 100 U. S. 239; Chew
Heong v. United States, 112 U. S. 536, 555; Holy Trinity Church

In Hawaii v. Mankichi, 190 U. S. 197, 214, the Court referred with approval
to the following language of the Master of the Rolls (afterwards Lord Esher)
in Plumstead Board of Works v. Spackman, L. R. 13 Q. B. D. 878, 887: If
there are no means of avoiding such an interpretation of the statute,’’ (as
will amount to a great hardship,) a judge must come to the conclusion
that the legislature by inadvertence has committed an act of legislative in-
justice; but to my mind a judge ought to struggle with all the intellect that
he has, and with all the vigor of mind that he has, against such an interpreta-
tion of an act of Parliament; and, unless he is forced to eome to a contrary
conclusion, he ought to assume that it is impossible that the legislature could
have so intended.

Sorrells vs. United States. 9

v United States, 143 U. S. 457, 459-462; Hawaii v. Mankichi, 190
U. S. 197, 212-214; Jacobson v. Massachusetts, 197 U. S. 11, 39;
United States v. Jin Fuey Moy, 241 U. S. 394, 402; Baender v.
Barnett, 255 U. S. 224, 226; United States v. Chemical Founda-
tion, 272 U. S. 1, 18.

We think that this established principle of construction is ap-
plicable here. We are unable to conclude that it was the inten-
tion of the Congress in enacting this statute that its processes of
detection and enforcement should be abused by the instigation
by government officials of an act on the part of persons otherwise
innocent in order to lure them to its commission and to punish them.
We are not forced by the letter to do violence to the spirit and pur-
pose of the statute. This, we think, has been the underlying and
controlling thought in the suggestions in judicial opinions that
the Government in such a case is estopped to prosecute or that
the courts should bar the prosecution. If the requirements of the
highest public policy in the maintenance of the integrity of ad-
ministration would preclude the enforcement of the statute in
such circumstances as are present here, the same considerations
justify the conclusion that the case lies outside the purview of the
Act and that its general words should not be construed to demand
a proceeding at once inconsistent with that policy and abhorrent
to the sense of justice. This view does not derogate from the
authority of the court to deal appropriately with abuses of its
process and it obviates the objection to the exercise by the court
of a dispensing power in forbidding the prosecution of one who is
charged with conduct assumed to fall within the statute.

We are unable to approve the view that the court, although treat-
ing the statute as applicable despite the entrapment, and the de-
fendant as guilty, has authority to grant immunity, or to adopt a
procedure to that end. It is the function of the court to construe
the statute, not to defeat it as construed. Clemency is the function
of the Executive. Eæ parte United States, 242 U. S. 27, 42. In
that case, this Court decisively denied such authority to free
guilty defendants, in holding that the court had no power to sus-
pend sentences indefinitely. The Court, speaking by Chief Justice
White, said— if it be that the plain legislative command fixing
a specific punishment for crime is subject to be permanently set
aside by an implied judicial power upon considerations extraneous

10 Sorrells vs. United States.

to the legality of the conviction, it would seem necessarily to fol-
low thai there could be likewise implied a discretionary authority
to permanently refuse to try a criminal charge because of the con-
clusion that a particular act made criminal by law ought not to be
treated as criminal. And thus it would come to pass that the
possession by the judicial department of power to permanently re-
fuse to enforce a law would result in the destruction of the con-
ceded powers of the other departments and hence leave no law to
be enforced’’. And while recognizing the humane considerations
which had led judges to adopt the practice of suspending sentences
indefinitely in certain cases, the Court found no ground for ap-
proving the practice ‘‘since its exercise in the very nature of
things amounts to a refusal by the judicial power to perform a duty
resting upon it and, as a consequence thereof, to an interference
with both the legislative and executive authority as fixed by the
Constitution“. Id. pp. 51, 52. Where defendant has been duly
indicted for an offense found to be within the statute, and the
proper authorities seek to proceed with the prosecution, the court
cannot refuse to try the case in the constitutional method because
it desires to let the defendant go free.

Suggested analogies from procedure in civil cases are not help-
ful. When courts of law refuse to sustain alleged causes of action
which grow out of illegal schemes, the applicable law itself denies
the right to recover. Where courts of equity refuse equitable
relief because complainants come with unclean hands, they are
administering the principles of equitable jurisprudence govern-
ing equitable rights. But in a criminal prosecution, the statute
defining the offense is necessarily the law of the case.

To construe statutes so as to avoid absurd or glaringly unjust
results, foreign to the legislative purpose, is, as we have seen, a
traditional and appropriate function of the courts. Judicial nulli-
fication of statutes, admittedly valid and applicable, has, happily,
no place in our system. The Congress by legislation can always,
if it desires, alter the effect of judicial construction of statutes.
We conceive it to be our duty to construe the statute here in
question reasonably, and we hold that it is beyond our prerogative
to give the statute an unreasonable construction, confessedly con-
trary to public policy, and then to decline to enforce it.

The conclusion we have reached upon these grounds carries its
own limitation. We are dealing with a statutory prohibition and

Sorrells vs. United States. 11

we are simply concerned to ascertain whether in the light of a plain
public policy and of the proper administration of justice, conduct
induced as stated should be deemed to be within that prohibition.
We have no occasion to consider hypothetical cases of crimes so
heinous or revolting that the applicable law would admit of no ex-
eeptions. No such situation is presented here. The question in
each case must be determined by the scope of the law considered
in the light of what may fairly be deemed to be its object.

Objections to the defense of entrapment are also urged upon
practical grounds. But considerations of mere convenience must
yield to the essential demands of justice. The argument is pressed
that if the defense is available it will lead to the introduction of
issues of a collateral character relating to the activities of the
officials of the Government and to the conduct and purposes of
the defendant previous to the alleged offense. For the defense
of entrapment is not simply that the particular act was com-
mitted at the instance of government officials. , That is often the
ease where the proper action of these officials leads to the revela-
tion of criminal enterprises. Grimm v. United States, supra. The
predisposition and criminal design of the defendant are relevant.
But the issues raised and the evidence adduced must be pertinent
to the controlling question whether the defendant is a person
otherwise innocent whom the Government is seeking to punish for
an alleged offense which is the product of the creative activity of
its own officials. If that is the fact, common justice requires that
the accused be permitted to prove it. The Government in such a
ease is in no position to object to evidence of the activities of its
representatives in relation to the accused, and if the defendant
seeks acquittal by reason of entrapment he cannot complain of an
appropriate and searching inquiry into his own conduct and pre-
disposition as bearing upon that issue. If in consequence he
suffers a disadvantage, he has brought it upon himself by reason
of the nature of the defense.

What has been said indicates the answer to the contention of
the Government that the defense of entrapment must be pleaded in
bar to further proceedings under the indictment and cannot be
raised under the plea of not guilty. This contention presupposes
that the defense is available to the accused and relates only to
the manner in which it shall be presented. The Government con-

12 Sorrells vs.. United States.

siders the defense as analogous to a plea of pardon or of autrefois
convict or autrefois acquit. It is assumed that the accused is not
denying his guilt but is setting up special facts in bar upon which
he relies regardless of his guilt.or innocence of the crime charged.
This, as we have seen, is a misconception. The defense is available,
not in the view that the accused though guilty may go free, but
that the Government cannot be permitted to contend that he is
guilty of a crime where the government officials are the instigators
of his conduct. The Federal courts in sustaining the defense in
such circumstances have proceeded in the view that the defendant
is not guilty. The practice of requiring a plea in bar has not
obtained. Fundamentally, the question is whether the defense,
if the facts bear it out, takes the case out of the purview of the
statute because it cannot be supposed that the Congress intended
that the letter of its enactment should be used to support such
a gross perversion of its purpose.

We are of the opinion that upon the evidence produced in the
instant case the defense of entrapment was available and that the
trial court was in error in holding that as a matter of law there
was no entrapment and in refusing to submit the issue to the jury.

The judgment is reversed and the cause is remanded for further
proceedings in conformity with this opinion.

Judgment reversed.
Mr. Justice McReynotpds is of the opinion that the judgment
below should be affirmed.
A true copy.
Test:

Clerk, Supreme Court, U. 8.

SUPREME COURT OF THE UNITED STATES.

No. 177.—Octosrr TRM, 1932.

On Writ of Certiorari to
the United States Cir-
cuit Court of Appeals
for the Fourth Circuit.

C. V. Sorrells, Petitioner,
vs.
The United States of America.

[December 19, 1932.]

Mr. Justice Roserts.

The facts set forth in the court’s opinion establish that a pro-
hibition enforcement officer instigated the commission of the crime
charged. The courts below held that the showing was insufficient,
as matter of law, to sustain the claim of entrapment, and that the
jury were properly instructed to ignore that defense in their con-
sideration of the case. A conviction resulted. The Government
maintains that the issue of entrapment is not triable under the
plea of not guilty, but should be raised by plea in bar or be ad-
judicated in some manner by the court rather than by the jury,
and as the trial court properly decided the question, the record pre-
sents no reversible error. I think, however, the judgment should
be reversed, but for reasons and upon grounds other than those
stated in the opinion of the court.

Of late the term entrapment' has been adopted by the courts
to signify instigation of crime by officers of government. The
cases in which such incitement has been recognized as a defense
have grown to an amazing total.! The increasing frequency of
the assertion that the defendant was entrapped is doubtless due to
the creation by statute of many new crimes, (e. g., sale and trans-
portation of liquor and narcotics) and the correlative establish-
ment of special enforcement bodies for the detection and punish-
ment of offenders. The efforts of members of these forces to obtain

arrests and convictions have too often been marked by reprehensible
methods.

See O’Brien v. United States, 51 F. (2d) 674, footnote 1, p. 678.

Sorrells vs. United States.

Society is at war with the criminal classes, and courts have uni-
formly held that in waging this warfare the forces of prevention
and detection may use traps, decoys, and deception to obtain
evidence of the commission of crime. Resort to such means does
not render an indictment thereafter found a nullity nor call for
the exclusion of evidence so procured.* But the defense here as-
serted involves more than obtaining evidence by artifice or decep-
tion. Entrapment is the conception and planning of an offense by
an officer, and his procurement of its commission by one who would
not have perpetrated it except for the trickery, persuasion, or
fraud of the officer. Federal and state courts have held that
substantial proof of entrapment as thus defined calls for the sub-
mission of the issue to the jury and warrants an acquittal. The
reasons assigned in support of this procedure have not been uni-
form. Thus it has been held that the acts of its officers estop the
government to prove the offense. The result has also been justified
by the mere statement of the rule that where entrapment is proved
the defendant is not guilty of the crime charged. Often the de-
fense has been permitted upon grounds of public policy, which
the courts formulate by saying they will not permit their process
to be used in aid of a scheme for the actual creation of a crime by
those whose duty is to deter its commission.

This court has adverted to the doctrine,’ but has not heretofore
had oceasion to determine its validity, the basis on which it should
rest, or the procedure to be followed when it is involved. The
present case affords the opportunity to settle these matters as re-
spects the administration of the federal criminal law.

There is common agreement that where a law officer envisages a
crime, plans it, and activates its commission by one not thereto-
fore intending its perpetration, for the sole purpose of obtaining
a victim through indictment, conviction and sentence, the consum-
mation of so revolting a plan ought not to be permitted by any
self respecting tribunal. Equally true is this whether the offense
is one at common law or merely a creature of statute. Public
policy forbids such sacrifice of decency. The enforcement of this
policy calls upon the court, in every instance where alleged entrap-

Compare Olmstead v. United States, 277 U. 8. 488.
Casey v. United States, 276 U. S. 413.

Sorrells vs. United States. 3

ment of a defendant is brought to its notice, to ascertain the facts,
to appraise their effect upon the administration of justice, and to
make such order with respect to the further prosecution of the
cause as the circumstances require.

This view calls for no distinction between crimes mala in se and
statutory offenses of lesser gravity ; requires no statutory eonstrue-
tion, and attributes no merit to a guilty defendant; but frankly
recognizes the true foundation of the doctrine in the publie policy
which protects the purity of government and its processes Al-
ways the courts refuse their aid in civil cases to the perpetration
and consummation of an illegal scheme. Invariably they hold a
civil action must be abated if its basis is violation of the decencies
of life, disregard of the rules, statutory or common law, which
formulate the ethics of men’s relations to each other. Neither
courts of equity nor those administering legal remedies tolerate
the use of their process to consummate a wrong.“ The doctrine
of entrapment in criminal law is the analogue of the same rule
applied in civil proceedings. And this is the real basis of the
decisions approving the defense of entrapment, though in state-
ment the rule is cloaked under a declaration thet the government
is estopped or the defendant has not been proved guilty.

A new method of rationalizing the defense is now asserted. This
is to construe the act creating the offense by reading in a condition
or proviso that if the offender shall have been entrapped into
crime the law shall not apply to him. So, it is said, the true in-
tent of the legislature will be effectuated. This seems a strained
and unwarranted construction of the statute; and amounts, in
fact, to judicial amendment. It is not merely broad construction,
but addition of an element not contained in the legislation. The
constituents of the offense are enumerated by the statute. If we
assume the defendant to have been a person of upright purposes,
law abiding, and not prone to crime,—induced against his own will
and better judgment to become the instrument of the criminal pur-
pose of another,—his action, so induced, none the less falls within
the letter of the law and renders him amenable to its penalties.

‘See Hannay v. Eve, 3 Cranch. 242, 247; Bank of United States v. Owens,
2 Pet. 527, 538; Bartle v. Coleman, 4 Pet. 184, 188; Hanauer v. Doane, 12
Wall. 342, 349; Trist v. Child, 21 Wall. 441, 448; Hazelton v. Sheckells, 202
U. 8. 71; Crocker v. United States, 240 U. 8. 74, 78.

4 Sorrells vs. United States.

Viewed in its true light entrapment is not a defense to him; his
act, coupled with his intent to do the act, brings him within the
definition of the law; he has no rights or equities by reason of his
entrapment. It cannot truly be said that entrapment excuses him
or contradicts the obvious fact of his commission of the offense.
We cannot escape this conclusion by saying that where need arises
the statute will be read as containing an implicit condition that it
shall not apply in the case of entrapment. The effect of such con-
struction is to add to the words of the statute a proviss which gives
to the defendant a double defense under his plea of not guilty,
namely, (a) that what he did does not fall within the definition of
the statute, and (b) entrapment. This amounts to saying that
one who with full intent commits the act defined by law as an of-
fense is nevertheless by virtue of the unspoken and implied man-
date of the statute to be adjudged not guilty by reason of some-
one’s else improper conduct. It is merely to adopt a form of words
to justify action which ought to be based on the inherent right of
the court not to be made the instrument of wrong.

It is said that this case warrants such a construction of the ap-
plicable act, but that the question whether a similar construction
will be required in the ease of other or more serious crimes is not
before the court. Thus no guide or rule is announced as to when
a statute shall be read as excluding a case of entrapment; and no
principle of statutory construction is suggested which would en-
able us to say that it is exeluded by some statutes and not by others.

The doctrine rests, rather, on a fundamental rule of public
policy. The protection of its own functions and the preservation
of the purity of its own temple belongs only to the court. It is
the province of the court and of the court alone to protect itself
and the government from such prostitution of the criminal law.
The violation of the principles of justice by the entrapment of the
unwary into crime should be dealt with by the court no matter by
whom or at what stage of the proceedings the facts are brought to
its attention.“ Quite properly it may discharge the prisoner upon
a writ of habeas corpus.“ Equally well may it quash the indict-
ment or entertain and try a plea in bar.“ But its powers do not

Compare Gambino v. United States, 275 U. S. 310, 319.

*See United States ex rel. Hassell v. Mathues, 22 F. (2d) 979.

Compare United States v. Pappagoda, 288 Fed. 214; Spring Drug Co. v.
United States, 12 F. (2d) 852.

Sorrells vs. United States. 5

end there. Proof of entrapment, at any stage of the case, re-
quires the court to stop the prosecution, direct that the indictment
be auashed, and the defendant set at liberty.“ If in doubt as to
the facts it may submit the issue of entrapment to a jury for ad-
vice. But whatever may be the finding upon such submission the
power and the duty to act remain with the court and not with the
jury.

Such action does not grant immunity to a guilty defendant.
But to afford him as his right a defense founded not on the stat-
ute, bot on the court’s view of what the legislature is assumed to
have meant, is to grant him unwarranted immunity. If the court
may construe an act of Congress so as to create a defense for one
whose guilt the act pronounces, no reason is apparent why the
same statute may not be modified by a similar process of construe-
tion as to the penalty prescribed. But it is settled that this may
not be done. Eæ parte United States, 242 U. S. 27. The broad
distinction between the refusal to lend the aid of the court’s own
processes to the consummation of a wrong and the attempt to
modify by judicial legislation the mandate of the statute as to
the punishment to be imposed after trial and conviction is so ob-
vious as not to need discussion.

Recognition of the defense of entrapment as belonging to the
defendant and as raising an issue for decision by the jury called
to try him upon plea of the general issue, results in the trial of a
false issue wholly outside the true rule which should be applied
by the courts. It has been generally held, where the defendant
has proved an entrapment, it is permissible for the government
to show in rebuttal that the officer guilty of incitement of the
crime had reasonable cause to believe the defendant was a person
disposed to commit the offense. This procedure is approved by
the opinion of the court. The proof received in rebuttal usually
amounts to no more than that the defendant had a bad reputa-
tion, or that he had been previously convicted. Is the statute upon

In United States v. Echols, 253 Fed. 862, upon the tender of a plea of
guilty, the court of its own motion examined the prisoner and the officers
concerned in his arrest; and being satisfied that these officers had instigated
the crime, declared that public policy required that the plea be refused and
the case dismissed. In United States v. Healy, 202 Fed. 349, a judgment and
sentence were set aside and the defendant discharged upon the court’s ascer-
taining that the conviction was procured by entrapment.

6 Sorrells vs. United States.

which the indictment is based to be further construed as removing
the defense of entrapment from such a defendant!

Whatever may be the demerits of the defendant or his previous
infractions of law these will not justify the instigation and creation
of a new crime, as a means to reach him and punish him for his past
misdemeanors. He has committed the crime in question, but, by
supposition, only because of instigation and inducement by a
government officer. To say that such conduct by an official of
government is condoned and rendered innocuous by the fact that
the defendant had a bad reputation or had previously trans-
gressed is wholly to disregard the reason for refusing the pro-
cesses of the court to consummate an abhorrent transaction. It is
to diseard the basis of the doctrine and in effect to weigh the
equities as between the government and the defendant when there
are in truth no equities belonging to the latter, and when the rule
of action cannot rest on any estimate of the good which may come
of the conviction of the offender by foul means. The accepted
procedure, in effect, pivots conviction in such cases, not on the com-
mission of the crime charged, but on the prior reputation or some
former act or acts of the defendant not mentioned in the indictment.

The applicable principle is that courts must be closed to the
trial of a crime instigated by the government’s own agents. No
other issue, no comparison of equities as betweer the guilty official
and the guilty defendant, has any place in the enforcement of
this overruling principle of public policy.

The judgment should be reversed and the cause remanded to
the District Court with instructions to quash the indictment and
discharge the defendant.

Mr. Justice Branpets and Mr. Justice SToNE concur in this
opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0261%3A6. Public record. Not legal advice.